Opinion: Think attorney

POSTED: 08/30/12 12:55 PM

There was an interesting discussion in the courtroom yesterday morning that touches on the rights of citizens that get on the wrong side of the law – and those who are expected by law enforcement of hanging out there.
The case involves a man who was involved in a traffic accident and who left the scene without bothering to identify himself to the other party involved. Fortunately, that other party managed to register the number plate of the fleeing car.
So two days later, the wayward motorists got an invitation to present himself at the police station to explain his role in the accident. The man complied and he told the officer in charge the honest truth.
The motorist apparently never thought about asking for an attorney and so it happened that his voluntary confession became part of the court case that eventually earned him a 1,500 guilders fine.
His attorney Geert Hatzmann was none too happy with the way things had gone down at the police station.
He called on the Salduz-arrest, a piece of jurisprudence that entitles suspects to an attorney before they ever open their mouth in a police station.
My client was summoned to the police station, the attorney argued in court yesterday. But in his file the standard form that points out his rights to him was missing. The police report also did not mention that the motorist had waived his right to an attorney.
All this, mr. Hatzmann noted, had irreparably damaged his client’s position in the trial, and he asked the court to declare the prosecution inadmissible. Why? Well, the attorney said, if he had had an attorney he would not have made a confession, and then there would not have been any proof. That in turn would have resulted in the defendant’s acquittal.
Prosecutor Dounia Benammar did not want to hear about it. The crucial point, she said, is that the defendant was not arrested. Only after someone has been arrested is he entitled to the rights that flow from the Salduz-arrest. It is up to the defendant to get advice from an attorney in these cases.
mr. Hatzmann acknowledged that the prosecutor had a strong argument. But he still pleaded with the court to consider “the spirit of Salduz” and the balance of power between the mighty government and a vulnerable suspect.
Judge Tamara Tijhuis rejected the defense argument, and the case was dealt with.
There is an important lesson here for all citizens. Most people will not be familiar with the Salduz-arrest or with the rights they have or don’t have once they end up in a situation wherein they are questioned by the police. Certainly the finer points, like the difference between being arrested and being summoned to the police station will escape the average citizen.
That’s understandable because the large majority never ever sees the inside of a police station. That’s because most of us are law abiding citizens.
The thing is, our motorist is not a trained criminal and he was of course not aware of the rules of the game – and that cost him 1,500 guilders.
Now we are not pleading here in favor of people who leave the scene of an accident after causing it. Not at all. But it is prudent to think attorney the very moment somebody puts the handcuffs on you, or the moment a friendly police officer invites you for a quiet talk at the station. It could make all the difference further down the road